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2023 (2) TMI 827 - CESTAT AHMEDABADRecovery of Service tax alongwith interest and penalty - telecommunication service - demand dropped on the ground that telecommunication service is taxable only if it is provided to any person who has been granted a Licence under first proviso to section 4(1) of the Indian Telegraph Act, 1885 - HELD THAT:- In the present case the service involved is telecom service, this service is chargeable to service tax only when service is provided by a person who has been granted a Licence under first proviso to section 4(1) of the Indian Telegraph Act, 1885. In the present case admittedly the appellant do not possess the Licence under first proviso to section 4(1) of the Indian Telegraph Act, 1885. Therefore, even though the service is a telecom service but not as per the statutory definition of the telecom service hence the same is not taxable. From the circular under F.No. 137/21/2011 -ST dated 15.07.2011, it is clear that the appellant being not holding Licence under Telegraph Act, 1885 is not liable to pay service tax. The judgments cited by the learned Chartered Accountant also directly on the issue and support the case of the appellant - reliance placed in the case of IDEA CELLULAR LTD. VERSUS COMMISSIONER OF SERVICE TAX MUMBAI – IV [2021 (9) TMI 452 - CESTAT MUMBAI] where it was held that The appellant, as a licencee of the domestic telecommunication regulatory regime, is not conferred with empowerment to operate in a foreign territory and can neither, conceivably, offer such service independent of the overseas entity nor avail of the equipment of overseas operator for rendering ‘telecommunication service’ to its subscribers. The activity, therefore, lies outside the ambit of ‘support service of business or commerce’ which is the ‘taxable service’ sought to be fastened on the appellant as ‘deemed provider’ under section 66A of Finance Act, 1944. Consequently, the demand of tax on ‘roaming charges’ and ‘call termination charges’ in the impugned order fails. Appeal allowed.
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